BRENHAM AIRPORT FBO FILES LAWSUIT AGAINST CITY

  

The Brenham Municipal Airport’s Fixed Base Operator (FBO) is suing the city for allegations of “draconian and outrageously discriminatory treatment.”

In a lawsuit filed July 20^th in 21^st District Court, Brent Nedbalek, the owner of Aviators Plus, claims he was subjected to “an unscrupulous game of financial bait and switch” and that the requirements imposed on his business in the FBO agreement with the city were “unreasonable” and “financially untenable.”  Nedbalek is seeking monetary relief of over $1 million and other remedies allowed by state law.

Nedbalek asserts he has “significantly invested in the growth, expansion and notoriety” of the Brenham airport since starting Aviators Plus in 2008, and recognized several years ago the need for a reliable fuel supply service.  Operating as the airport FBO at the time was Southern Flyer, which Nedbalek says struggled to maintain adequate fuel supply, threatening his business operation.  Because of this, he asked the city to be allowed to purchase and install new aviation fuel tanks, but states he was told the city would only consider his request if Aviators Plus became an FBO at the airport.

The terms of the FBO agreement were negotiated for nearly two years before being approved by the city council in September 2019.  A section of the agreement stated that if Southern Flyer were to cease FBO operations and vacate the city-owned terminal building, and Aviators Plus had not completed construction of an FBO building of its own, then it would take over the terminal building within 30 days of Southern Flyer leaving.  Originally, Nedbalek proposed a new FBO building adjacent to the public ramp, adding in the lawsuit that this was initially encouraged by the city.  However, after submitting architectural drawings, engineering plans and various study results, he claims the city did not present a ground lease for the FBO building to the city council, despite it having been approved by the now-dissolved Airport Advisory Board.

Upon the closing of Southern Flyer, no movement was made on a new FBO building, so Nedbalek approached the city about moving into the vacant terminal building.  He says the city refused, instead proposing an amended FBO agreement that he called “unfair, arbitrary and unreasonable.”  Nedbalek did sign it, but the city council tabled action on the matter twice in early 2021, and he argues the city added in new conditions prior to allowing Aviators Plus to lease the terminal building.

The city’s demands, according to Nedbalek, included “monthly rent of concessions from $750 and up to $2,000,” improvements to the terminal building, and improvements to and operation of a restaurant at the building.  Southern Flyer’s lease was $50 a month plus improvements in order to lease the terminal building, use city-owned aviation fuel storage tanks and act as the city’s FBO.  In November 2021, the city ultimately approved a lease agreement for the restaurant portion of the building with Canion Kountry Bakery, operating as Dreamliner Diner, for $500 a month and no requirement for improvements to the building or restaurant space.

Per the lawsuit, Nedbalek claims the city required Aviators Plus to offer round-the-clock fuel services despite traffic at the airport not warranting 24-hour staffing, and rejected his request to have an on-call employee to assist with fuel services after regular business hours.  He believes the city placed “unnecessary restrictions” on Aviators Plus’ activities that were not required for other tenants or businesses at the airport and forced it to operate at a “financial detriment.”

In late 2021, Nedbalek sent the city a notice of default, declaring the city’s refusal to provide the terminal building and public ramp an event of default under the FBO agreement.  Follow-up correspondence was sent in January before the FBO elected to discontinue full services, while keeping the self-serve fueling facilities in operation.  According to Nedbalek, the city attorney proposed mutual termination of the agreement, but the termination would be treated as default under Aviators Plus’ ground leases with the city for its hangars and fuel farms.  This, Nedbalek states, would give the city ability to “illicitly and illegally take Aviators Plus’ substantial investment in those leaseholds.”  Nedbalek declined and proposed mediation, but he says the city has been unwilling to do so thus far.  The city has hired an airport manager and expressed intent to assume FBO functions at the airport, but Nedbalek says the city’s “unprofessional and wrongful conduct” has placed current and future operations and growth at the airport “in jeopardy.”

The lawsuit alleges the city breached its contract with Aviators Plus by failing to fulfill obligations such as making the terminal building and public ramp available, and timely providing feedback or approval of the FBO’s various requests.  It also claims the city has violated applicable Federal Aviation Regulations developed by the Federal Aviation Administration.

The city says it is unable to make any comment on the lawsuit at this time.

Aviators Plus is being represented by Coats & Evans, P.C., an aviation law firm based out of The Woodlands.  The city council will discuss retaining legal counsel in relation to the lawsuit during an executive session at its meeting Thursday.